BEC » Topics » Item 1.01 Entry into a Material Definitive Agreement.

This excerpt taken from the BEC 8-K filed Aug 4, 2009.

Item 1.01 Entry into a Material Definitive Agreement.

As previously announced, Beckman Coulter, Inc. (“Beckman Coulter”) entered into a Master Purchase Agreement, dated as of February 27, 2009 (the “Purchase Agreement”), with Olympus Corporation (“Olympus”) to acquire the diagnostic systems portion of Olympus’ life sciences business (the “Diagnostic Systems Business”) for up to 77.45 billion Japanese Yen (approximately U.S. $800 million based on currency exchange rates as of the signing). Olympus is a Tokyo-headquartered precision technology company that creates opto-digital solutions in healthcare, life science and consumer electronic products. The Diagnostic Systems Business encompasses the development, manufacturing, marketing, sale, distribution and use of clinical chemistry and immunoassay analyzers, blood transfusion testing systems, and the chemical reagents and other consumables used with them, and related laboratory automation equipment, for in vitro diagnostic testing of samples from humans and animals.

Beckman Coulter and Olympus have entered into an Amended and Restated Master Purchase Agreement (the “Amended and Restated Purchase Agreement”), dated as of August 3, 2009 (Tokyo time). The Amended and Restated Purchase Agreement amends the Purchase Agreement by, among other things, memorializing the parties’ mutual agreement to all schedules to the Amended and Restated Purchase Agreement as well as agreement on each of the related ancillary documents.

The description of the Amended and Restated Purchase Agreement set forth above is qualified by reference to the Amended and Restated Purchase Agreement filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference. The Amended and Restated Purchase Agreement provides information regarding the terms of the acquisition and is not intended to provide any other factual information about us or the Diagnostic Systems Business. In particular, certain representations and warranties in the Amended and Restated Purchase Agreement were used for the purpose of allocating risk between us and Olympus rather than establishing matters as facts. Accordingly, the representations and warranties in the Amended and Restated Purchase Agreement should not be relied upon as characterizations of the actual state of facts about us or the Diagnostic Systems Business.

This excerpt taken from the BEC 8-K filed Mar 4, 2009.

Item 1.01 Entry into a Material Definitive Agreement.

Beckman Coulter, Inc. (“Beckman Coulter”) has entered into a Master Purchase Agreement, dated as of February 27, 2009 (the “Purchase Agreement”), with Olympus Corporation (“Olympus”) to acquire the diagnostic systems portion (the “Diagnostic Systems Business”) of its life sciences business, for 77.45 billion Japanese Yen (approximately U.S. $800 million based on currency exchange rates as of the signing) (the “Closing Payment”). Olympus is a Tokyo-headquartered precision technology company that creates opto-digital solutions in healthcare, life science and consumer electronic products. The Diagnostic Systems Business encompasses the development, manufacturing, marketing, sale, distribution and use of clinical chemistry and immunoassay analyzers, blood transfusion testing systems, and the chemical reagents and other consumables used with them, and related laboratory automation equipment, for in vitro diagnostic testing of samples from humans and animals.

Beckman Coulter will pay the Closing Payment through (i) a minimum cash payment of 47.5 billion Japanese Yen (approximately U.S. $490 million based on currency exchange rates as of the signing) and (ii) up to 29.95 billion Japanese Yen (approximately U.S. $310 million based on currency exchange rates as of the signing) (the “Stock Purchase Price”) in either cash or common stock, at Beckman Coulter’s option (with any such cash in lieu of stock subject to an approximately five percent discount on the Stock Purchase Price). For purposes of calculating the Stock Purchase Price, a share of common stock of Beckman Coulter is valued at the Japanese Yen equivalent of the average closing price for the 20 consecutive trading days prior to the fifth business day prior to the closing date. To the extent common stock is issued to Olympus, the cash portion of the Stock Purchase Price will be adjusted, as needed, so as to cause Olympus to own less than 14.9% of the outstanding capital stock of Beckman Coulter immediately after the closing. The Closing Payment is subject to adjustment based on a comparison of estimated net assets at closing to a target amount of net assets as well a reduction for net debt remaining at the closing. Beckman Coulter currently expects to finance the Closing Payment with a combination of newly issued debt (representing approximately U.S. $500 million) and newly issued common stock (representing approximately U.S. $300 million).

On February 27, 2009, Beckman Coulter also entered into forward contracts with Bank of America, N.A., J.P. Morgan Chase, Wells Fargo Bank, N.A., Morgan Stanley Capital Services Inc., The Royal Bank of Scotland and Scotia Capital covering the full amount of the Closing Payment in order to hedge the risk of changes in the exchange rate of the Japanese Yen versus the U.S. Dollar between the signing and closing of the transactions contemplated by the Purchase Agreement. The forward contracts transactions effectively fixed the U.S. Dollar cost of the Closing Payment at U.S. $780 million.

The Purchase Agreement contemplates that Olympus will spin-off the Diagnostic Systems Business assets in Germany, France and Japan into newly formed entities in each respective jurisdiction, and that Beckman Coulter will acquire the capital stock of each of the newly formed entities. Additionally, Beckman Coulter will purchase assets related to the Diagnostic Systems Business from various subsidiaries and affiliates of Olympus, which are located in approximately twenty other foreign countries.

The closing of the transaction also is subject to the parties’ mutual agreement to all schedules to the Purchase Agreement and agreement on several ancillary documents, including the (1) Transition Services Agreement, (2) Cross-License Agreement, (3) Technology Transfer Agreement and (4) Stockholder Rights Agreement (to the extent common stock of Beckman Coulter is issued at the closing for a portion of the Closing Payment). Either party may terminate the Purchase Agreement if, by the later of March 31, 2009 or 15 days after Olympus delivers all of the schedules to Beckman Coulter, the parties have not agreed on the final schedules to the Purchase Agreement.

Beckman Coulter and Olympus have made customary representations and warranties in the Purchase Agreement, including representations by Olympus regarding the operations of the Diagnostics Systems Business and the entities that will be acquired at the closing. The obligations of Beckman Coulter and Olympus to complete the transactions contemplated by the Purchase Agreement also are subject to certain closing conditions, including the (1) expiration of any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and receipt of applicable non-U.S. antitrust approvals; (2) accuracy in all material respects of each party’s representations and warranties; (3) material compliance by each party with its obligations and covenants under the Purchase Agreement; (4) absence of any injunction, decree or order issued by a governmental entity prohibiting the completion of the transaction; (5) assignment of material registrations, licenses and approvals; (6) receipt of audited statement of assets acquired and liabilities assumed and statement of direct revenues and expenses of the Diagnostic Systems Business; and (7) receipt of consents to the assignment of certain material agreements.

 

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The parties have agreed to indemnify each other for any breach by the indemnifying party of the representations, warranties, covenants and other agreements contained in the Purchase Agreement or any of the local spin-off and asset transfer agreements. Representations and warranties survive for two years after the closing date, other than representations and warranties related to organization, due authorization, sufficiency of assets, capitalization, trade practices, taxes and the structure of the acquired entities in Germany and France (the “Surviving Representations”), which will survive until expiration of the applicable statute of limitations periods. The maximum indemnification obligation (other than for breaches of the Surviving Representations) is 12.5% of the Closing Payment and is subject to a deductible of 1% of the Closing Payment.

The Purchase Agreement is subject to customary termination rights. In addition, Beckman Coulter is required to pay Olympus a termination fee of 2.5 billion Japanese Yen (approximately U.S. $26 million based on currency exchange rates as of the signing) if all conditions for Beckman Coulter to close are met and Beckman Coulter is unable or unwilling to close or otherwise fails to close in breach of the Purchase Agreement. Beckman Coulter also is required to pay the termination fee described above if all conditions to closing have been met or waived, except that (1) the closing shall not have occurred by December 31, 2009 or such later date as the parties agree (unless the failure to consummate the transaction is due to Olympus’ failure to perform its agreements prior to the closing) because all antitrust approvals have not been obtained or waived, or (2) a governmental antitrust authority has issued an order restraining, enjoining or prohibiting the transactions and the order has become final and non-appealable, and in each case, Olympus thereafter terminates the Purchase Agreement.

Assuming the parties agree to the schedules and ancillary agreements to the Purchase Agreement and the conditions to closing have been satisfied, the transaction is expected to close in the third quarter of 2009.

The foregoing summary of the Purchase Agreement and the forward contracts does not purport to be complete and is subject to the terms and conditions of the Purchase Agreement and forward contracts.

This excerpt taken from the BEC 8-K filed Nov 3, 2008.

Item 1.01 Entry into a Material Definitive Agreement.

On October 29, 2008, Beckman Coulter, Inc. Beckman Coulter Finance Company, LLC, Park Avenue Receivables Company LLC, JPMorgan Chase Bank, N.A. and the financial institutions party thereto amended the Receivables Purchase Agreement, dated as of October 31, 2007, between such parties to, among other things, reduce the purchase limit from $175,000,000 to $125,000,000 and extend the term of the agreement from October 29, 2008 to October 28, 2009. This transaction was reported by registrant in Form 8-Ks filed on November 6, 2007 and February 6, 2008. A copy of the Receivables Purchase Agreement, dated as of October 31, 2007, between Beckman Coulter, Inc. Beckman Coulter Finance Company, LLC, Park Avenue Receivables Company LLC, JPMorgan Chase Bank, N.A. and the financial institutions party thereto incorporating all amendments through and including the October 29, 2008 amendment is included as an exhibit to this Report and incorporated by reference.

This excerpt taken from the BEC 8-K filed Feb 26, 2008.

Item 1.01—Entry into a Material Definitive Agreement

As of October 31, 2007, Beckman Coulter, Inc. (“Beckman Coulter”) and Beckman Coulter Finance Company, LLC, a wholly-owned bankruptcy-remote special purpose subsidiary of Beckman Coulter (“Beckman Coulter Finance Company”), entered into a $175.0 million receivables securitization facility (the “Receivables Securitization Facility”). Pursuant to a receivables sale agreement, dated as of October 31, 2007 (the “Receivables Sale Agreement”), Beckman Coulter agreed to sell and/or contribute to Beckman Coulter Finance Company from time to time certain trade receivables and related security (the “Receivables”). In turn, Beckman Coulter Finance Company agreed to sell from time to time certain undivided percentage ownership interests in the Receivables, related security and the cash collections and proceeds of the Receivables to JPMorgan Chase Bank, as administrative agent under a receivables purchase agreement, dated as of October 31, 2007 (the “Receivables Purchase Agreement”), for the benefit of one or more financial institutions party thereto. This transaction was reported by Beckman Coulter in a Current Report on 8-K filed on November 6, 2007.

On February 6, 2008, in connection with the Receivables Securitization Facility, Beckman Coulter and Beckman Coulter Finance Company entered into an interpurchaser agreement (the “Interpurchaser Agreement”) with De Lage Landen Financial Services, Inc., De Lage Landen Finance, Inc. (together with De Lage Landen Financial Services, Inc., “DLL”), and JPMorgan Chase Bank, N.A., as administrative agent, in order to set forth, among other things, the respective rights of the parties in certain receivables sold, assigned or otherwise conveyed by Beckman Coulter or Beckman Coulter Finance Company to such parties and serviced by Beckman Coulter. The Interpurchaser Agreement is filed as Exhibit 10.1 to this Report and is incorporated herein by reference.

Also on February 6, 2008, Beckman Coulter, Beckman Coulter Finance Company, Park Avenue Receivables Company LLC, JPMorgan Chase Bank, N.A. and the financial institutions party thereto entered into an omnibus amendment (the “Amendment”) to the Receivables Purchase Agreement in order to, among other things, reflect certain changes made to the Receivables Purchase Agreement in connection with the execution of the Interpurchaser Agreement and to add an additional amortization event. The Amendment is filed as Exhibit 10.2 to this Report and is incorporated herein by reference.

The summary of the above agreements is qualified in its entirety by reference to the agreements filed as Exhibits 10.1 and 10.2 to this Report and incorporated herein by reference.

This excerpt taken from the BEC 8-K filed Nov 28, 2007.

Item 1.01 Entry into a Material Definitive Agreement

On November 21, 2007, Lumigen, Inc., Beckman Coulter’s wholly owned subsidiary, entered into a “Unit Purchase Agreement” with Hashem Akhavan-Tafti, A. Paul Schaap, Richard S. Handlery, and Gary T. Priestap (collectively the “Sellers”) under which Lumigen will acquire the portion of NexGen Diagnostics, L.L.C. that it currently does not own. NexGen Diagnostics was formed in 2006, in conjunction with Beckman Coulter’s acquisition of Lumigen, to focus on further developing and commercializing specified technologies based on intellectual property contributed by Lumigen. Lumigen currently owns 19.9 percent of NexGen Diagnostics and the Sellers own the remaining 80.1 percent. The purchase price, payable at closing, will be $36,045,000, which will be recorded as a research and development charge in Beckman Coulter’s consolidated financial statements.

The Agreement contains covenants, representations, and warranties, creates indemnification obligations, provides for termination of the Agreement, contains closing conditions, and contains other terms and conditions which Beckman Coulter considers typical for this type of agreement. The representations, warranties, covenants and other agreements are qualified by information contained in confidential disclosure schedules that Beckman Coulter received in connection with the execution of the Agreement. The disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations, warranties, covenants and other agreements set forth in the Agreement. Although certain of the information contained in the disclosure schedules may be non-public, Beckman Coulter does not believe that this information is required to be publicly-disclosed under the Federal securities laws. Moreover, certain of these representations, warranties, covenants and other agreements may not be accurate or complete as of a specific date because they are subject to a contractual standard of materiality that may be different from the standard generally applied under the Federal securities laws or were used for the purpose of allocating risk between Beckman Coulter, Lumigen, and NexGen Diagnostics shareholders rather than establishing matters as facts. Finally, information concerning the subject matter of these representations, warranties, covenants and other agreements may have changed since the date of the Agreement, which may or may not be fully-reflected in Beckman Coulter’s public disclosures. Accordingly, you should not rely on these representations, warranties, covenants and other agreements as statements of fact.

This excerpt taken from the BEC 8-K filed May 2, 2007.

Item 1.01. Entry into a Material Definitive Agreement.

On March 24, 2007, Beckman Coulter, Inc. (“Beckman”), Louisiana Acquisition Sub, Inc., a wholly-owned subsidiary of Beckman (“Purchaser”), and Biosite Incorporated (“Biosite”), each a Delaware corporation, entered into a definitive Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Beckman commenced an offer (the “Offer”) to acquire all of the outstanding shares of Biosite common stock, par value $0.01 per share, (the “Biosite Shares”) for $85.00 in cash per share, without interest (the “Offer Price”). The Merger Agreement was previously filed as Exhibit 2.1 on Form 8-K by Beckman on March 26, 2007.

On May 1, 2007, Beckman entered into an Amendment to the Agreement and Plan of Merger (the “Amendment”) with Biosite and Purchaser, amending the Merger Agreement. Pursuant to the Amendment, among other things, the Offer Price was increased from $85.00 to $90.00 per share, and the Termination Fee (as defined in the Merger Agreement) was increased from $50,000,000 to $54,000,000. The foregoing description of the Amendment does not purport to be complete. A copy of the Amendment is attached hereto as Exhibit 2.1 and incorporated herein by reference.

The Amendment has been unanimously approved by the Beckman, Purchaser and Biosite Boards of Directors, and Biosite’s Board of Directors continues to recommend that its stockholders accept the Offer and, if required by applicable law, approve the merger contemplated by the Merger Agreement.

In conjunction with the Amendment, Beckman exercised its right to extend the expiration date of the Offer to the end of the day at 12:00 midnight, New York City time, on Tuesday, May 15, 2007. Under the terms of the Amendment, Beckman is no longer obligated to extend the expiration of the Offer beyond May 15, 2007, although it may choose to do so.

Both the Amendment and the extension of the Offer were announced in a press release issued by Beckman on May 1, 2007. The full text of that press release is filed herewith as Exhibit 99.1 and incorporated herein by reference.

This excerpt taken from the BEC 8-K filed Mar 26, 2007.

Item 1.01. Entry into a Material Definitive Agreement.

Merger Agreement

On March 24, 2007, Beckman Coulter, Inc. (“Beckman”), Louisiana Acquisition Sub, Inc., a wholly-owned subsidiary of Beckman (“Purchaser”), and Biosite Incorporated (“Biosite”), each a Delaware corporation, entered into a definitive Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Purchaser will commence an offer (the “Offer”) to acquire all of the outstanding shares of Biosite common stock, par value $0.001 per share, (the “Biosite Shares”) for $85.00 in cash per share, without interest (the “Purchase Price”).

Completion of the Offer is subject to several conditions, including (i) that a majority of the Biosite Shares outstanding (determined on a fully diluted basis) must be tendered and not withdrawn at the time the tendered shares are accepted; (ii) the absence of any law or order prohibiting the completion of the Offer; and (iii) that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) must have expired or terminated and certain foreign antitrust approvals, if necessary, must have been obtained. Subject to the terms of the Merger Agreement, Biosite has granted Purchaser an option to purchase that number of newly-issued Biosite Shares that is equal to 10,000 shares more than the amount needed to give Purchaser ownership of 90% of the outstanding Biosite Shares (the “Top-Up Option”), provided that the number of Biosite Shares that may be issued pursuant to the Top-Up Option may not exceed 19.9% of the number of Biosite Shares outstanding as of the date of the Merger Agreement. The Top-Up Option is exercisable only if Purchaser acquires at least 80% of the outstanding Biosite Shares pursuant to the Offer or other means. Purchaser will pay Biosite the Purchase Price for each share acquired upon exercise of the Top-Up Option.

Following consummation of the Offer, Purchaser will be merged with and into Biosite (the “Merger”), with Biosite surviving as a wholly owned subsidiary of Beckman. Upon completion of the Merger, each Biosite Share outstanding immediately prior to the effective time of the Merger (excluding Biosite shares held by Beckman, Purchaser, Biosite or their wholly-owned subsidiaries, and by stockholders who properly preserve their appraisal rights under the Delaware General Corporation Law) will be cancelled and converted into the right to receive the Purchase Price. If Purchaser acquires 90% or more of the then outstanding Biosite Shares through the Offer, the Top-Up Option, or otherwise, it may effect the Merger as a short-form merger without approval by Biosite’s stockholders. Otherwise, Biosite will hold a special stockholders’ meeting to obtain stockholder approval of the Merger.

Consummation of the Merger is subject to customary conditions, including (i) the adoption of the Merger Agreement, if required, by the requisite vote of the stockholders of Biosite; (ii) the purchase of the Biosite Shares by Purchaser pursuant to the Offer; (iii) the absence of any law or order prohibiting the Merger; and (iv) the expiration or termination of any applicable waiting period under the HSR Act and the receipt of certain foreign antitrust approvals, if necessary.

Beckman and Biosite have made customary representations, warranties and covenants in the Merger Agreement, including covenants (i) to promptly effect all registrations, filings and submissions required pursuant to the HSR Act, the Securities Exchange Act of 1934 and other applicable laws with respect to the Offer and the Merger; and (ii) to use commercially reasonable efforts to take all other actions necessary to consummate and effectuate the transactions contemplated by the Merger Agreement.

Biosite has also agreed to (i) use commercially reasonable efforts to conduct its business in the ordinary course consistent with past practice prior to consummation of the Merger and (ii) not solicit or engage in discussions concerning alternative proposals for the acquisition of Biosite, subject to specified exceptions.

The Merger Agreement has been adopted by the boards of directors of Beckman and Biosite, and the board of directors of Biosite has unanimously voted to recommend that the stockholders of Biosite tender their shares in the Offer and, if necessary, vote to approve the Merger. The Merger Agreement can be terminated by Beckman or Biosite under certain circumstances. If the circumstances relate to the acceptance by Biosite of an alternative acquisition proposal or a change in the recommendation of the Biosite board of directors, then Biosite may be required to pay Beckman a termination fee of $50 million.


Support Agreement

On March 24, 2007, in connection with the Offer, Beckman and Purchaser entered into a Tender and Stockholder Support Agreement with Kim D. Blickenstaff, Chairman and Chief Executive Officer of Biosite (the “Support Agreement”). Under the terms of the Support Agreement, Mr. Blickenstaff has agreed to tender all Biosite Shares now or hereafter acquired by him in connection with the Offer. He has also agreed to vote such shares in support of the Merger in the event stockholder approval is required to consummate the Merger. Mr. Blickenstaff currently holds 241,946 Biosite Shares, or approximately 1.5% of the current outstanding Biosite Shares. In addition, Mr. Blickenstaff holds options to acquire 437,811 Biosite Shares, of which 375,256 are currently vested and exercisable.

Financing Commitment

On March 24, 2007, in connection with the Offer, Beckman entered into a commitment letter (the “Commitment Letter”), pursuant to which Morgan Stanley Senior Funding Inc. and Citigroup Global Markets, Inc. have committed to provide financing for the Offer. The Commitment Letter provides for up to $1.65 billion of financing under a 364-day bridge loan facility. The commitment is subject to various conditions, including consummation of the Offer in accordance with the Merger Agreement and other closing conditions similar to those applicable to the completion of the Offer and the Merger.

The foregoing description of the Offer, Merger, Merger Agreement, Support Agreement and Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, the Support Agreement and the Commitment Letter, filed respectively as Exhibit 2.1, 10.1 and 10.2 hereto and incorporated herein by reference.

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